Opinion 22-184

December 15, 2022

Digest:         A village justice who serves in that capacity without compensation (1) may not simultaneously serve as a justice of the supreme court or a judge of the district court but (2) may, subject to any requisite administrative approvals, simultaneously serve as a support magistrate or court attorney-referee.

Rules:          NY Const art 6 § 20(b)(1);  22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(H)(1)(c); Opinions 17-184; 03-130; 03-80; 00-12; 98-07/98-24; 96-116; 95-97.

Opinion:

         The inquirer serves, without compensation, as a part-time village justice. The village justice would like to continue to volunteer in that capacity, while also taking on a compensated full-time judicial or quasi-judicial position. Accordingly, the justice asks if it is ethically permissible to serve as a district court judge, supreme court justice, support magistrate, or court attorney-referee.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on their capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

Concurrent Service as Full-Time Judge

         The New York Constitution provides that certain full-time judges, including a “justice of the supreme court,” may not “hold any other public office or trust” unless an exception applies (NY Const art 6 § 20[b][1]). Accordingly, we conclude the inquiring village justice may not serve simultaneously as a supreme court justice.

         On its face, the constitutional prohibition does not appear to apply to district court judges or to city court judges outside New York City (id.). For such judges, we turned to Section 100.4(H)(1)(c), which states “No full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of: (1) New York State, its political subdivisions or any office or agency thereof.” We relied on that provision in advising that neither a full-time city court judge nor a full-time district court judge may serve as a part-time village justice (see Opinions 03-130; 98-07/98-24). Indeed, we said that the “clear intent of the rule is to prohibit full-time judges from participating in other compensated governmental activity which would prevent the judge from devoting full efforts to his/her full-time judicial responsibilities” (Opinion 98-07/98-24).

         In our view, the same concerns are implicated even when the full-time judge is willing to undertake (or in this case, continue) the part-time judicial position without compensation. That is, whether the full-time judge is willing to serve in a part-time judicial position with or without pay should not blur the line.

         Accordingly, we conclude a part-time village justice serving without compensation may not simultaneously serve as a full-time judge of the district court or supreme court.

Concurrent Service as Full-time Quasi-Judicial Official

         We have previously said a part-time judge may serve concurrently as a support magistrate (see Opinions 17-184; 96-116; 95-97)¹ or court attorney-referee (see Opinion 00-12). Accordingly, we likewise conclude the inquiring village justice may also serve as a support magistrate or court attorney-referee, subject to any necessary approvals under the Rules Governing Conduct of Nonjudicial Court Employees (22 NYCRR part 50). (Contact: ETHICS HELPLINE: 1-888-28-ETHIC.)

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¹ The position of family court child support magistrate was “formerly titled ‘Hearing Examiner’” (Opinion 03-80).